I’m sure if you wanted, you could go online and search through 1,000 proverbs about beginning a process and you’ll find a few that mention that perhaps the most difficult step in that process is the first. Getting the “oomph” you need to take that first step and build some forward momentum is an underrated part of a divorce from the standpoint of difficulty.
The emotions that you are likely experiencing at this time make any sort of decision a tough one and you are most likely not firing on all cylinders from a mental perspective, either.
With that being said, I would like to share with you an overview of how to actually begin the process of filing for divorce in Texas. While doing so follows the path of many other civil cases in Texas, the emotions and relational history of a divorce make doing so more difficult from my experience as an attorney. My hope is that by going through these steps you can understand the steps and give yourself some peace of mind in regard to whether not filing for divorce is the best thing to do for you and your family.
Naming the parties and legal documents in a divorce
Any good overview of a process should first define the terminology that we will be utilizing throughout the overview, in my opinion. If you file for divorce from your spouse you are known as the Petitioner.
Your spouse will have the legal obligation to respond to your divorce filing and as a result, he will be known as the Respondent in your divorce case. From here forward if I use the terms “Petitioner” or “Respondent” you can refer back to his paragraph to go over what each “role” means in the context of your divorce if you forget.
Where to file for divorce?
For some of you that have resided in the same county with your spouse for many, many years the answer to this question may be obvious. For others reading this blog you may have no earthly idea where you should be filing your divorce.
You and your spouse have moved ten times in ten years of marriage and have lived many different residences along the way. You may have even separated from your spouse in recent years with you living in one Texas county and your spouse living in another. Where should you go from here to file for divorce?
To be able to file for a divorce in Texas (any county in Texas, that is) you and your spouse (or one of you individually) must have resided in Texas for at least six months before filing for divorce. With so many Texans having recently come into our state, both from other countries and other states, this is often more difficult to achieve step than you may think. I’ve counseled many folks in the past few years to cool their heels and to wait to establish residency before filing for divorce here.
The next step in determining where you should be filing for divorce is to determine in what county you or your spouse have resided for over ninety days. This means that if you and your spouse have not resided together, as long as you have resided in your county of residence for over ninety days then you can file near your home.
This can potentially provide you an advantage at least from a travel perspective. If your spouse resides away from you any courtroom hearings would require your spouse to travel to you. Be aware that if your spouse files before you do where he or she resides the same advantage would apply to your spouse.
Grounds for divorce in Texas
The vast majority of divorces in Texas are known as “no-fault” divorces. This means that there was not one particular issue that drove either you or your spouse to file for divorce but a general discord or conflict in your personalities that saw no chance for reconciliation. Simply put- the reason for getting a divorce in Texas in mostly just not being able to get along with your spouse.
In other situations, you can assert specific “grounds” for your divorce having been filed. This is done in order to gain tactical advantages. The biggest area that the advantage is sought is in dividing up your community estate. Something like adultery or physical violence against you by your spouse could result in you being awarded a disproportionate (greater than fifty percent) stake in your community estate.
Be aware that in filing your Original Petition for Divorce, you should not get into the nitty-gritty details regarding each allegation of adultery, abuse or other fault grounds for filing the divorce. Simply stating that adultery has occurred is sufficient. Going into time and location details of each extra-marital affair of your spouse is inappropriate and is likely to be struck from your Petition by the court.
Filing your Original Petition for Divorce
The Original Petition for Divorce will be the initial filing in your Texas divorce. This document identifies you, your spouse, your children under eighteen (if any) as well as any requests you are making of the court in regard to your children and property. As we mentioned in our previous section this document will also list each fault ground (if any) that has led to the breakup of your marriage, in your opinion.
For the most part filing divorces is done completely online in today’s world. Your Petition would be accompanied by a filing fee and what is called a Citation. The Citation is a document produced by your court to be served upon your spouse with your Original Petition for Divorce. It specifically states that you are suing him or her for divorce and that there is a deadline by which to file an Answer by.
The court will stamp all documents and will assign a “cause number” to identify your case with moving forward. Once the documents have been prepared, filed and reviewed by the court it is time to serve your spouse with them.
This means that you will need to pay for a process server or constable to pick the documents up from the courthouse and to locate your spouse and personally serve him or her with the papers. If you hire an attorney to represent you, these logistical matters will be handled by your attorney.
I should note that filing for divorce costs money. There are filing fees associated with filing your Original Petition and any other document that relates to your divorce. Each county charges different rates for filing fees. You should search the website of the county that you are filing for divorce in to determine what those fees are.
Inform your spouse that you having filed for divorce
Now that you have drafted and filed your Original Petition for Divorce it is time to make your spouse aware of this fact. Your spouse is entitled to legal notice of your having filed the Petition. There are multiple ways to do so.
In some instances, your spouse may be willing to sign a Waiver of Service affidavit in which he or she states that they understand their right to receive formal notice of the divorce but waive their right to be served personally.
This does not mean he or she waives their right to be informed of any future court dates, for example, but does waive their right to be served by one of the methods we are about to get into. Often times a Waiver of Service is appropriate in “uncontested” divorces or ones where there are not likely to be any issues that are going to be argued or negotiated over.
The other methods to serve your spouse with divorce papers will be discussed in tomorrow’s blog
Come back and join us again tomorrow where we will reveal the additional methods of service in a divorce case. If any of the subject matter that we have discussed today have you scratching your head or leave you wanting more information please contact the Law Office of Bryan Fagan today.
We offer free of charge consultations six days a week. Our team of licensed family lawattorneys would be honored to speak to you and to go over any issues or questions that you may have.
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Other Articles you may be interested in:
- Where do you file a divorce in Texas and what are the steps after filing?
- What to think about prior to filing for divorce in Texas
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- 49 Best Texas Divorce Advice Tips
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- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.